The Complainant is Airlink (Pty) Limited, South Africa, represented by Adams & Adams Attorneys, South Africa.
The Respondent is Contact Privacy Inc. Customer 12410521468, United States of America / Farhan, South Africa.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 28, 2021. On October 28, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 28, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 29, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 2, 2021.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 9, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 29, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 30, 2021.
The Center appointed Jeremy Speres as the sole panelist in this matter on December 3, 2021. The Panel finds that it was properly constituted. The Panel submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual BackgroundThe Complainant was founded in 1992 and has traded since then as a regional airline connecting smaller towns and regional centres in Southern Africa. Initially trading as SA Airlink, the Complainant switched to the AIRLINK mark in 1994. The Complainant has grown into the largest privately owned regional airline in Southern Africa, operating on 45 routes in 14 different Southern African countries.
The Complainant owns the domain name
The Domain Name was registered on June 28, 2021 and, as at the lodging of the Complaint and drafting of this Decision, did not resolve to any website. However, the Complainant has provided evidence of the use of the Domain Name as part of an immigration fraud scheme in terms of which an employee of the Complainant was impersonated in an email sent from an address at the Domain Name purportedly authorising entry into South Africa by an individual without the requisite travel visa.
5. Parties’ Contentions A. ComplainantThe Complainant contends that the Domain Name is confusingly similar to its AIRLINK mark, that the Respondent has no rights or legitimate interests in the Domain Name, and the Domain Name was registered and used in bad faith given that the Complainant’s mark, wholly contained within the Domain Name, was well-known in the Respondent’s country prior to registration of the Domain Name, and the Domain Name has been used to impersonate an employee of the Complainant for purposes of immigration fraud.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarWhere the trade mark is recognisable in the domain name, the addition of other terms does not prevent a finding of confusing similarity (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) at section 1.8). The Complainant’s registered AIRLINK mark is readily apparent in the Domain Name and the additional terms “fly” and “4z” do not obscure it. The Complainant has satisfied the standing requirement under paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsThe Complainant has adduced sufficient evidence to establish that its AIRLINK mark was well-known in the Respondent’s territory of South Africa long prior to registration of the Domain Name. Additionally, UDRP panelists may take judicial notice of the repute of a trade mark within their personal knowledge where it cannot reasonably be contested (see section 4.8 of the WIPO Overview 3.0; Société des Produits Nestlé S.A. v. Sonia de Ferrero,WIPO Case No. D2016-1300). The Panel, having been a resident of South Africa for many years prior to registration of the Domain Name, is acutely familiar with the Complainant, as any regular air passenger in South Africa is likely to be.
The Complainant’s mark was registered and well-known long prior to registration of the Domain Name in the Respondent’s territory. The Domain Name is confusingly similar to the Complainant’s mark and the Complainant has certified that the Domain Name is unauthorised by it. There is no evidence that any of the circumstances set out in paragraph 4(c) of the Policy pertain.
The Complainant has presented credible, uncontroverted evidence that the Domain Name has been used to impersonate an employee of the Complainant for the purposes of immigration fraud. Previous UDRP panels have categorically held that use of a domain name for illegal activity (e.g., phishing, impersonation, or other types of fraud) can never confer rights or legitimate interests (WIPO Overview 3.0 at section 2.13.1).
The Complainant has made out a prima facie case that the Respondent lacks rights or legitimate interests and the burden of production thus shifts to the Respondent (WIPO Overview 3.0 at section 2.1), which the Respondent has failed to rebut.
The Complainant has satisfied paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe composition of the Domain Name strongly suggests that the Respondent targeted the Complainant when registering the Domain Name. Although not mentioned in the Complaint, the Panel has independently established that “4z” is the unique designation code assigned to the Complainant by the International Air Transport Association (IATA). The word “fly” obviously describes the Complainant’s business. This, combined with the fact that the Complainant’s AIRLINK mark, which is wholly contained within the Domain Name, was well-known in the Respondent’s territory at the time of registration of the Domain Name, puts the Respondent’s targeting of the Complainant beyond doubt.
It is well accepted that use of a domain name to perpetuate fraud constitutes bad faith (WIPO Overview 3.0 at section 3.4). The Complainant’s evidence establishes that the Domain Name has been used for fraud as set out above.
The Panel has also independently established that two prior decisions under the Policy, also involving respondents located in South Africa incorporating AIRLINK within domain names targeted at the airline industry, have been decided in the Complainant’s favour. The repute of the Complainant’s AIRLINK mark in South Africa was recognised in both cases. See SA Airlink (Pty) Limited v. Themba Mohlabi, CEC-SA,WIPO Case No. D2019-2726; SA Airlink (Pty) Limited v. Andersen Franks,WIPO Case No. D2020-1470. This supports the Panel’s finding of bad faith in this case.
The Panel draws adverse inferences from the Respondent’s use of a privacy service and the provision of incomplete personal details (first name only) in the WhoIs database (WIPO Overview 3.0 at section 3.6; Playboy Enterprises International, Inc. v. Universal Internet Technologies, Inc.,WIPO Case No. D2001-0811), as well as the Respondent’s failure to take part in the present proceeding where an explanation is certainly called for (WIPO Overview 3.0 at section 4.3).
The Complainant has satisfied paragraph 4(a)(iii) of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name
Jeremy Speres
Sole Panelist
Date: December 7, 2021